USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1662
JOSE A. RIVERA-MARCANO, ET AL.,
Plaintiffs, Appellants,
v.
NORMEAT ROYAL DANE QUALITY A/S,
(formerly NORMEAT-HOLDING & EXPORT),
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Hector Cuebas Tanon with whom Vicente & Cuebas was
____________________
_________________

on brief

appellants.
Ivan R. Fernandez-Vallejo with whom Raymond E. Morales and Br
__________________________
___________________
__
Newsom & Cordova were on brief for appellee.
________________
____________________
July 13, 1993
____________________

CAMPBELL, Senior Circuit Judge.

____________________

The district court

granted summary judgment for appellee on appellants' claim of

malicious prosecution.

Finding no error, we affirm.

I.
I.

Appellant
sole

owner

and

Jose A. Rivera Marcano ("Rivera") is the

operator

of

J.A.R.

Enterprises,

Inc.

("J.A.R."), a brokerage and distribution firm in Puerto Rico.

Beginning in 1983, J.A.R.
Puerto

Rico

manufactured

of the
by

served as the exclusive broker

luncheon meat

appellee

Normeat

and other
Royal

in

food products

Dane Quality

A/S

("Normeat"),

corporation

business in Denmark.

with

directly.
checks

to

customers

deposit the

percent of
balance

the amount as

to Normeat.

of

J.A.R. would then transport the

in

Puerto

Rico

either Normeat

money

place

shipped merchandise

After customers paid J.A.R.

made payable to

would

principal

Normeat normally

to J.A.R. on a credit basis.

merchandise

its

in its

bank

and

bill

usually by means of
or J.A.R.

J.A.R.

account, keep

a sales commission, and

Ordinarily,

them

J.A.R.

had

three

remit the
an

account

payable to Normeat with an outstanding balance of hundreds of

thousands of dollars.
Sometime in 1987, Normeat's new management informed
Rivera that it would no longer extend credit for shipments to
J.A.R. and demanded immediate payment of J.A.R.'s outstanding
account balance of approximately $500,000.

Rivera

protested

-2-

the

change,

contradicted

informing
long-standing

difficulties for

J.A.R.

Normeat

that

practice and
Negotiations

the

new

created
between the

policy
financial
parties

failed to resolve the dispute, and Normeat notified Rivera in

October
J.A.R.

1987 that
and would

it would

cease

proceed to

shipping merchandise

collect all

sums

to

due through

appropriate legal channels.

Two

years

later,

deputy managing director

to

Justice

in June

1989,

Ken

of Normeat, gave a

state prosecutor

in

the

Puerto

Rasmussen,

sworn statement

Rico Department

regarding Rivera's failure, as owner and operator of

J.A.R., to turn over one or more customer payments

belonging to Normeat.

The

statement nor

Rasmussen told the

prosecutors.

Justice

although the

allegedly

record contains neither a copy of

Rasmussen's sworn

of

of

conducted an

anything else
The Puerto

investigation of

extent of the

showing what

Rico Department
the accusations,

investigation is not

clear from

the record.
In September 1989, a Department of Justice attorney
filed criminal charges
of

against Rivera in the

Puerto Rico, alleging

unlawful appropriation
Puerto

Rico Penal

Code,

Superior Court

six separate counts

in violation
33

L.P.R.A.

of aggravated

of Article 166 of the

42721

____________________
1.

33 L.P.R.A.

4272 provides, in relevant part:

-3-

and

two

counts of
271,

forgery of

33 L.P.R.A.

documents
45912

in
all

violation of

felonies.

The

Article
charges

accused Rivera, in essence, of depositing in the J.A.R.

written

by

customers

as

payment

bank

account

six checks

for

Normeat

merchandise and not transferring the payments, minus

____________________
Any person committing the offense
described in section 4271 of this title
[Unlawful
Appropriation]
shall
be
punished by imprisonment for a fixed term
of ten (10) years, whenever the following
circumstances exist:
. . .
(b) Unlawfully
appropriating the
property of another valued at two hundred
dollars or more; . . . .
33 L.P.R.A.
provides:

4271,

referred

to

in

section

Any
person
who
unlawfully
appropriates,
without
violence
or
intimidation, personal property belonging
to another person, shall be punished by
imprisonment for a term not exceeding six
months, a fine not exceeding five hundred
dollars, the penalty of restitution, or
any
combination
thereof,
in
the
discretion of the court.
2.

33 L.P.R.A.

4591 provides in relevant part:

Any person who, with the intent to

defraud another, falsely draws up, in
whole or in part, a document, instrument
or
writ
through which
any
right,

4272,

obligation
or
interest
is created,
transferred,
terminated
or otherwise
affected,
or
who
falsely
alters,
counterfeits, suppresses or destroys a
genuine one in whole or in part, shall be
punished by imprisonment for a fixed term
of nine (9) years. . . .
-4-

J.A.R.'s sales
judge found
Rivera on all

commission, to

probable cause

Normeat.3

to issue

A Superior

an arrest

eight charges, and referred the

Court

warrant for
case to three

different courts for preliminary hearings because the alleged

crimes

took place in

magistrates

separately

three different jurisdictions.

considered

proceed

to

the

trial on

charges
six

Three

and

found

of the

eight

probable

cause to

charges.

One aggravated unlawful appropriation count and one

forgery count, both relating to a November 12, 1986 check for

$59,274.12 from a company called Mister Price, were dismissed
for lack of probable cause.4

____________________
3. The six counts of aggravated unlawful appropriation were
based on the following transactions:

1) a November 12, 1986 check for $59,274.12 from Mister

Price, Division of Belca Equipment Corporation, payable to
Normeat;
2) a November 22, 1986 check for $60,557.41 from Pueblo
International, Inc. payable to J.A.R.;
3) a December 29, 1986 check for $61,337.16 from Mister
Price payable to Normeat;
4) a February 10, 1987 check for $30,645.15 from Alba
Imports Corporation payable to J.A.R.;
5) a March 24, 1987 check for $58,674.96 from Alba
Imports payable to J.A.R.; and,
6) an April 22, 1987 check for $30,646.67 from Alba
Imports payable to J.A.R.
The two counts of forgery
payable to Normeat.

were based on the two

checks made

4. In the district court, appellants submitted copies of a

cancelled check purporting to show that J.A.R. did in fact
pay Normeat $57,495.90 for the Mister Price shipment a few
months after receiving the $59,274.12 check from Mister
Price.
-5-

The remaining counts were consolidated for trial at

the

San Juan Superior Court.

February
left

21, 1990, the

Puerto

Rico for

After

main prosecution witness, Rasmussen,

Denmark

and

island.

The prosecutor moved for

charges,

and the court

February

26,

unappealable.

1990.

one day of testimony on

never returned

the

dismissal of the criminal

granted dismissal with

The

to

dismissal

is

now

prejudice on
final

and

Rivera,

along

with his

wife

and

their conjugal

partnership, brought this diversity action against Normeat on

November 26,
the

1990, in the

District of

United States District

Puerto Rico,

seeking

Court for

damages pursuant

to

Puerto Rico tort law for the alleged malicious prosecution of

Rivera by Normeat.
state a claim.

Normeat moved to dismiss

for failure to

See Fed. R. Civ. P. 12(b)(6).

___

Because it had

numerous exhibits before

court

it from both parties,

treated Normeat's motion

and granted

as one for

it on April 21, 1992.

the district

summary judgment

See Fed. R.
___

Civ. P. 56.

Appellants now appeal from that final judgment.5

II.
II.
We review summary judgment
the

record in

party.

the

light most

grants de novo, reading

__ ____

favorable

to the

nonmoving

August v. Offices Unlimited, Inc., 981 F.2d 576, 580

______
________________________

____________________
5. The district court had diversity jurisdiction pursuant to
28 U.S.C.
1332(a)(2). This court has jurisdiction pursuant
to 28 U.S.C.
1291.
-6-

(1st Cir. 1992).

issue

To demonstrate the existence

of material fact,

admissible

evidence.

plaintiffs must point

Id.
___

Mere allegations,

unsupported in the record, are insufficient.

Under

Puerto

of a genuine

Rico

law,

to concrete,
or conjecture

Id.
___

plaintiff,

such

as

appellant, alleging malicious prosecution bears the burden of

proof.

Vince v. Posadas de Puerto Rico S.A.,

_____
____________________________

312, 315
(1913).

(D.P.R. 1988);

Par s v. Ruiz,
_____
____

683 F. Supp.

19 P.R.R.

323, 327

The four essential elements of the tort are: (1) the

criminal

action

was

initiated

and

instigated

by

the

defendant; (2) the criminal action terminated in favor of the

plaintiffs; (3)

the

defendant

initiated

malice and without probable cause;

the

plaintiffs suffered damages.

42 (P.R. 1988); Par s,

_____
may

also be

plaintiffs

described
must

show

malice and that he acted

___
F.

Supp. at 315

recovery.

Id.
___

& n.4.

the

action

with

and (4) as a consequence,

Ocasio
______

v. Rosa, 88 J.T.S.
____

19 P.R.R. at 327.

The third element

as

two

both that
____

separate
the

elements

because

defendant

acted with

without probable cause.

Vince, 683
_____

Failure to prove

at 315-16; Torres v. Marcano,

______
_______

any element bars

68 P.R.R. 813,

817 (1948); Par s, 19 P.R.R. at 332.

_____
The

district court

appellee Normeat

granted

on the ground

summary judgment

that nothing

in the

for

record

supports a finding that Normeat acted without probable cause.

"[P]robable

cause for

imputing the

commission

of a

crime

-7-

consists

in the

fact

that

there

are

reasonable

therefor, supported by circumstances which

grounds

are sufficient to

warrant a reasonable belief that the defendant is the

of

the crime."

Jim nez
_______

(1954); see Vince,

___ _____
331.

of

circumstances
reasonable

the

P.R.R. 347,

accused,

352

19 P.R.R. at

depend on the actual guilt or

but

are "sufficient

person

76

683 F. Supp. at 316; Par s,

_____

Probable cause does not

innocence

true."

v. S nchez,
_______

author

the belief

simply

to produce
that the

on

whether

in the mind
charge he

the
of a

makes is

Par s, 19 P.R.R. at 331.

_____
In

respect

to

five

of

the

six

transactions,

appellants pointed to
Normeat

lacked

misappropriating
indicates

that

no evidence tending to

probable

cause

to

accuse

Rivera

nothing shows that he

received

those

five

the Department of

In addition, the record

from

shows that

charges against

found probable cause

sufficient to issue an

his

an investigation,

sufficient to file the

Superior Court judge

all eight charges

checks

bank account, but

Justice attorney, after

found probable cause

of

The record

forwarded the paid amounts, minus

commission, to Normeat.

Rivera.

Rivera

and forging the alleged checks.

customers and deposited them in the J.A.R.

Rivera, and a

establish that

on

arrest warrant for

Three different magistrates, in separate preliminary

hearings, found that

evidence on the counts related to these

five transactions was sufficient to

send the case to

trial.

-8-

Because

appellants

failed

to

Normeat

lacked probable cause

produce

any

evidence

to prosecute Rivera

that

based on

those five checks, appellants would not be able to maintain a

claim for malicious prosecution based on those charges.

Appellants
dismissed after
both of

instead

a preliminary

which were

from the

focus

on

the

two

hearing before a

related to the

Mister Price company

November 12,

in the amount

charges

magistrate,
1986 check

of $59,274.12.

Appellants argue that Normeat lacked probable cause to accuse

Rivera of misappropriating and forging this particular check.
The
that

record contains

on February 13,

cancelled check

purportedly showing

1987, J.A.R. paid

Normeat $57,495.90,

the balance due for the shipment of goods to the Mister Price
company, and

a sworn

statement from

Rivera asserting

that

J.A.R. paid Normeat for the Mister Price shipment.

Whether and in
maintain

malicious

what circumstances a plaintiff

prosecution

action

based

on

may
one

groundless accusation, when probable cause existed for one or

more

other

addressed

accusations made
by

jurisdictions,
charges
other

the

courts have

stem from
elements

Puerto

concurrently,

Rico Supreme
permitted

different sets

of

malicious

fulfilled.

See, e.g.,
___ ____

Cir. 1991)

(holding that plaintiff

has never

Court.
such

of facts

In

other

actions if
and if

prosecution

been

the

all the

claim

are

Posr v. Doherty, 944 F.2d 91, 100 (2d

____
_______

-9-

could maintain malicious

prosecution claim
arrest

and

based on

assault

even

groundless charges
if

probable

of resisting

cause

existed

for

disorderly conduct charge); Singleton v. Perry, 289 P.2d 794,

_________
_____
799-800

(Cal.

1955)

defendant maliciously

("[P]laintiff,
joined an

having

unjustified

shown

that

charge with

justified charge, does not have the further burden of showing

that

her

damage

was

specifically

attributable

to

the

malicious prosecution as opposed to the prosecution which the

jury found was not malicious."); see also DeLaurentis v. City
________ ___________
____
of New Haven, 597
_____________
cases).
651-52

A.2d 807, 821-22

(Conn. 1991) (reviewing

But see Ruff v. Eckerds Drugs, Inc., 220 S.E.2d 649,

_______ ____
___________________
(S.C. 1975)

should not be

("[A]n action for

malicious prosecution

available, where, as here,

both charges arise

out of the same set of circumstances.").

In Rivera's case, even if he has presented evidence
sufficient
lack of

to raise a

probable cause

for the two

check from

fact concerning the

charges related

Mister

12,

evidence

to support the first essential element of malicious

wit, that Normeat,
___

prosecutors, initiated

Price,

to the

November

prosecution: to
__

1986

genuine issue of

there is

as opposed to

and instigated

these two

no

the state
particular

charges.6

See
___

Raldiris v.
________

Levitt & Sons of Puerto Rico,

_______________________________

____________________
6. The
district court did not consider the issue of
instigation of the prosecution, but we are free to affirm on
any independently sufficient ground.
Aunyx Corp. v. Canon
___________
_____
U.S.A., Inc., 978 F.2d 3, 6 (1st Cir. 1992), cert. denied,
____________
____________
113 S. Ct. 1416 (1993).
-10-

Inc.,
____

103 D.P.R.

778, 3

1087, 1091-92 (1975).

As

P.R.

Sup. Ct.

Off'l Translations

discussed above, under Puerto Rico

law a malicious prosecution plaintiff must show that:

[the] defendant was actively instrumental
in the initiation of the prosecution
through some affirmative action by way of
advice,
petition,
encouragement
or
pressure.
To furnish information to a
prosecuting attorney does not by itself
constitute
an
instigation,
since
generally in those cases the efficient
cause
of
the
initiation
of
the
prosecution has been the initiative and
decision of the prosecuting attorney, in
the exercise of his discretion, after
having carried out
the corresponding
investigation.
Jim nez v. S nchez, 76 P.R.R. at 351.
_______
_______

Where

the decision to

file charges is within

is

not

sufficient for

defendant

gave

"compelled" the

false

to show

information to

that the incomplete

the

Torres
______

to

that the

prosecutor.

file charges

v. Marcano, 68 P.R.R. at 818_______

Unless the defendant is shown to have knowingly provided

information to the

officials, "[t]he exercise

officer's discretion makes the initiation of

his

it

information caused

government authorities

against the plaintiff.

20.

plaintiffs merely

incomplete

Plaintiffs must show

or

the discretion of the prosecutor,

own

and

protects

from

liability

of the

the prosecution

the

person

whose

information or accusation has led the officer to initiate the

proceedings."
Torts
_____

Id.
___

at 819 (quoting 3 Restatement (First) of

_______________________

653(2), cmt.).

-11-

The record
other Normeat

contains no evidence that

officials specifically instigated

based on the November 12, 1986 check, nor

Rasmussen or
the charges

that they were the

source

of incomplete

officials

on that

or

item.

false

information

The

record

to

the

state

indicates only

that

Rasmussen gave a sworn statement to the prosecuting attorneys

regarding

the failure

payments due to

of J.A.R.

to turn

Normeat, a perfectly true

as anything in the record shows.

statement
from

appears in the

Rasmussen

Rasmussen

or

with

It

record, nor is

prosecutor

is

statement insofar

there an affidavit

indicating

exactly

what

Appellants concede that the

an investigation of

Normeat and that a Department

Rasmussen,

or more

No actual copy of the sworn

told the prosecutors.

prosecutors conducted

over one

J.A.R.'s dealings

of Justice attorney, not

filed the formal charges in court against Rivera.

conceivable

that

the

two

charges related

to

the

November 12, 1986 check resulted from oversights or errors by

personnel within the
specific
Rasmussen.
but

accusations

Department of Justice rather

relative

Appellants bear the

have put

Rasmussen gave

forward

no

that

check

evidence to

show

incomplete information

this check nor

that he coerced

filing the charges in question against Rivera.

even if appellants raised a

made

by

burden of proof on the issue

concrete

inaccurate or

authorities about

to

than from

that
to the

them into

Consequently,

genuine issue regarding lack

-12-

of

probable cause for the charges based on the November 12, 1986
check,
whether

appellants failed

Normeat initiated or

Appellants would be
proof

to

raise

genuine

instigated those

unable at trial to meet

issue

over

two charges.

their burden of

on an essential element of their malicious prosecution

claim.7
Affirmed.
________

Costs to appellee.
_________________

____________________
7. We have considered
appellants' arguments.

and find
-13-

no

merit in

the rest

of